Williams, Michael James ( 2015 )

WR-82,970-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/30/2015 12:10:28 PM
Accepted 6/30/2015 12:14:24 PM
June 30, 2015 ABEL ACOSTA
No. WR-82,970-01 CLERK
In the
Court of Criminal Appeals of Texas
at Austin

Cause No. 1445686-A
In the 208th District Court
of Harris County, Texas

Ex parte MICHAEL JAMES WILLIAMS

STATE’S BRIEF

Devon Anderson
District Attorney
Harris County, Texas
Inger H. Chandler
Assistant District Attorney
Harris County, Texas
State Bar No. 24041051
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713-755-1570
Fax No.: 713-368-9275
Chandler_Inger@dao.hctx.net
Counsel for The State of Texas
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPLICANT
i
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.2(a), a complete list of the names of all
interested parties is provided below so that the members of this Honorable Court
may at once determine whether they are disqualified to serve or should recuse
themselves from participating in the decision of the case.
Counsel for the State:
Devon Anderson – District Attorney of Harris County
Inger H. Chandler – Assistant District Attorney on appeal
Greg Houlton – Assistant District Attorney at trial
Applicant:
Michael James Williams
Counsel for Applicant:
Nicolas Hughes – Counsel on appeal
Jaime Garcia Acosta – Counsel at trial
Trial Judge:
Hon. Denise Collins – Presiding Judge
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
ISSUE PRESENTED .................................................................................................2
STATEMENT OF THE PROCEDURAL HISTORY ...............................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE ARGUMENT ........................................................................5
ARGUMENT .............................................................................................................6
The applicant’s plea of guilty to the felony offense of possession of a
controlled substance was involuntary when the substances seized and
tested by the Houston Forensic Science Center contained illicit
materials other than those alleged in the charging instrument and
belonging to a different penalty group. ........................................................... 6
In the narrowly-tailored circumstance of pre-indictment pleas of
guilty to drug possession charges, if a variance between the illicit
substance alleged in the charging instrument and the results of a
confirmatory laboratory report result in a conviction under an
incorrect statute, habeas relief must be granted to maintain the
integrity of the conviction ............................................................................. 12
PRAYER FOR RELIEF ..........................................................................................13
CERTIFICATE OF SERVICE ................................................................................14
APPENDIX .............................................................................................................. 15
iii
INDEX OF AUTHORITIES
Cases
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 215 (1963) ..................... 2
Curtis v. State, 548 S.W.2d 57 (Tex.Crim.App. 1977)........................................... 10
Ex parte Bisor, No. WR-82,382-01, 2014 WL 6789865 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12
Ex parte Lucas, No. WR-82,306-01, 2014 WL 6789947 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12
Ex parte Mable, 443 S.W.3d 129 (Tex.Crim.App. 2014) ....................................... 12
Ex parte Mayo, No. WR-82,047-01, 2014 WL 6788221 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12
Ex parte Williams, No. WR-82,307-01, 2014 WL 6788359 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12
Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.Crim.App. 1993) ...................... 11
Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) ............................... 11
Statutes
TEX. CODE CRIM. PROC. art. 11.07 ........................................................................... 16
TEX. HEALTH & SAFETY CODE § 481.102 ............................................................. 7, 9
TEX. HEALTH & SAFETY CODE § 481.103 .................................................................. 5
TEX. HEALTH & SAFETY CODE § 481.115 .................................................................. 5
TEX. HEALTH & SAFETY CODE § 481.116 .................................................................. 5
TEX. HEALTH & SAFETY CODE §§ 481.101-481.105 ................................................. 7
TEX. HEALTH & SAFETY CODE §§ 481.112-481.118 ................................................. 7
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas, by and through the undersigned Harris County Assistant
District Attorney, files its brief in response to the Court of Criminal Appeals’ filing
and setting for submission the issue of whether the applicant’s plea of guilty to the
felony offense of possession of a controlled substance was involuntary when the
substances seized and tested contained illicit materials other than those alleged;
and the State would show the following:
STATEMENT OF THE CASE
This case involves an application for writ of habeas corpus filed by the
applicant, Michael James Williams, pursuant to TEX. CODE OF CRIM. PROC. art.
11.07. The applicant is seeking habeas relief from his plea of guilty and
subsequent felony conviction for the offense of possession of a controlled
substance in cause number 1445686 (the primary case).
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is requested by the applicant.
1
ISSUE PRESENTED
(1) Whether the applicant’s plea of guilty to the felony offense of possession of
a controlled substance was involuntary when the substances seized and
tested contained illicit materials other than those alleged.
STATEMENT OF THE PROCEDURAL HISTORY
On December 2, 2014, the applicant entered a plea of guilty to the primary
case and was convicted of the third-degree felony offense of possession of a
penalty group two controlled substance, namely, 3,4-methylenedioxy
methamphetamine1 (more than one and less than four grams). Pursuant to a plea
bargain agreement, the applicant was sentenced by the trial court to two (2) years
in the Texas Department of Criminal Justice – Institutional Division.
On January 23, 2015, the State received a copy of the laboratory report
associated with the applicant’s disposed case from the Houston Forensic Science
Center. The laboratory report indicated that the controlled substance possessed by
the applicant was methamphetamine, not 3,4-methylenedioxy methamphetamine,
as alleged in the criminal complaint and judgment. The State immediately
forwarded the laboratory report to the Harris County Public Defender’s Office,
pursuant to its continuing obligation to disclose exculpatory evidence under Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 215 (1963).
1
Commonly known as “ecstasy” (in pill form) or “molly” (in a crystalline powder form).
2
On February 19, 2015, the applicant, represented by Harris County Assistant
Public Defender Nicholas Hughes, filed an application for writ of habeas corpus,
cause number 1445686-A. On February 27, 2015, the trial court signed the parties’
Agreed Findings of Fact and Conclusions of Law and recommended that relief be
granted in the applicant’s case.
On April 22, 2015, the Court of Criminal Appeals remanded the application
for further briefing on the legal issues presented by the application.
STATEMENT OF FACTS
On October 20, 2014, the applicant was arrested and charged with the
second-degree felony offense of possession of a penalty group one controlled
substance, namely, cocaine (weighing more than 4 and less than 200 grams), in
cause number 1445685, and the third-degree felony offense of possession of a
penalty group two controlled substance, namely, 3,4-methylenedioxy
methamphetamine (weighing more than one and less than four grams), in cause
number 1445686 (the primary case). See Appendix, State’s Exhibit A & B,
Criminal Complaints, cause nos. 1445685 and 1445686, respectively.2
2
The applicant’s co-defendant, Charles Lamont Waller, was arrested and charged with the
second-degree felony offense of possession of a penalty group one controlled substance, namely,
cocaine (more than four and less than two hundred grams), in cause number 1445687, and the
third-degree felony offense of possession of a penalty group two controlled substance, namely,
3
On December 2, 2014, the applicant waived indictment in the primary case
and entered into a plea agreement with the State of Texas. See February 27, 2015,
Court’s Findings of fact, Conclusions of Law, and Order, cause no. 1445686-A.
After a plea of guilty, the applicant was sentenced by the trial court to two (2)
years in the Texas Department of Criminal Justice – Institutional Division. See
Appendix, State’s Exhibit C, Judgment of Conviction by Court – Waiver of Jury
Trial, cause no. 1445686. As part of the applicant’s plea bargain agreement, cause
number 1445685 was dismissed on motion of the State.3 See Appendix, State’s
Exhibit D, Motion to Dismiss, cause no. 1445685.
On January 23, 2015, nearly two months after the applicant’s plea, the State
received a copy of the laboratory report associated with the applicant’s cases from
the Houston Forensic Science Center. See Appendix, State’s Exhibit E, Laboratory
Report #1, Houston Forensic Science Center. The laboratory report indicated that
the controlled substances possessed by the applicant were methamphetamine (1.48
grams) and cocaine (6.99 grams), not 3,4-methylenedioxy methamphetamine and
cocaine as alleged in the criminal complaints. See Appendix, State’s Exhibits A, B
and E. The State immediately forwarded the laboratory report to the Harris
County Public Defender’s Office pursuant to its continuing obligation to disclose
3,4-methylenedioxy methamphetamine (more than one and less than four grams), in cause
number 1445688.
3
The applicant’s co-defendant, Charles Lamont Waller, received an identical plea bargain
agreement.
4
exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 215 (1963).4 See Appendix, State’s Exhibit F, E-mail correspondence
between Harris County District Attorney’s Office and Harris County Public
Defender’s Office dated January 23, 2015.
On February 19, 2015, the applicant, represented by Harris County Assistant
Public Defender Nicholas Hughes, filed an application for writ of habeas corpus,
cause number 1445686-A, alleging that the applicant’s plea was involuntary and
that his conviction violates due process. See applicant’s writ.
Based on the State’s belief that the applicant’s conviction in the primary
case was, in fact, erroneous, the State joined the applicant in filing Agreed
Findings of Fact and Conclusions of Law. On February 27, 2015, the trial court
signed the parties’ agreed findings and recommended that relief be granted in the
applicant’s case. See February 27, 2015, Court’s Findings of fact, Conclusions of
Law, and Order, cause no. 1445686-A.
SUMMARY OF THE ARGUMENT
The applicant’s plea of guilty to the third-degree felony offense of
possession of a controlled substance was involuntary when the substances seized
and tested by the Houston Forensic Science Center contained illicit materials other
4
The applicant’s co-defendant, Charles Lamont Waller, has a pending writ of habeas corpus on
this identical issue, No. WR-83,098-01.
5
than those alleged in the charging instrument and belonging to a different penalty
group. The applicant pled guilty to possessing 3,4-methylenedioxy
methamphetamine, a penalty group two controlled substance, when, in fact, he
possessed methamphetamine, a penalty group one controlled substance. Due to the
categorizing of drug possession offenses by penalty group under the Texas
Controlled Substances Act (Chapter 481, TEX. HEALTH & SAFETY CODE), and the
potentially differing punishment ranges associated with each penalty group, the
State believes that the applicant’s conviction in the primary case was, in fact,
erroneous.
In the narrowly-tailored circumstance of pre-indictment pleas of guilty to
drug possession charges, if a variance is discovered between the illicit substance
alleged in the charging instrument and the results of a confirmatory laboratory
report, and that variance results in a conviction under an incorrect statute, habeas
relief must be granted to maintain the integrity of the conviction. The State’s duty
to seek justice requires that known errors in convictions be corrected as
expeditiously as possible.
ARGUMENT
THE APPLICANT’S PLEA OF GUILTY TO THE FELONY OFFENSE OF
POSSESSION OF A CONTROLLED SUBSTANCE WAS INVOLUNTARY
WHEN THE SUBSTANCES SEIZED AND TESTED BY THE HOUSTON
FORENSIC SCIENCE CENTER CONTAINED ILLICIT MATERIALS OTHER
THAN THOSE ALLEGED IN THE CHARGING INSTRUMENT AND
BELONGING TO A DIFFERENT PENALTY GROUP.
6
Chapter 481 of the TEXAS HEALTH AND SAFETY CODE sets out the Texas
Controlled Substances Act. The act categorizes controlled substances by penalty
group. See TEX. HEALTH & SAFETY CODE §§ 481.101-481.105. Within each
penalty group, the act further categorizes each penalty group by degree of offense
and punishment range. See TEX. HEALTH & SAFETY CODE §§ 481.112-481.118.
In cause number 1445685, the applicant was arrested and charged – with
specificity – with possessing cocaine, a penalty group one controlled substance.
See TEX. HEALTH & SAFETY CODE § 481.102(3)(d). No other penalty group in the
Texas Controlled Substances Act contains cocaine. The weight of the cocaine was
between 4 and 200 grams; thus, the applicant was charged with the second-degree
felony offense of possession of a controlled substance. See TEX. HEALTH &
SAFETY CODE § 481.115(d).
Likewise, in cause number 1445686, the applicant was arrested and charged
– with specificity – with possessing 3,4-methylenedioxy methamphetamine, a
penalty group two controlled substance. See TEX. HEALTH & SAFETY CODE §
481.103(1). No other penalty group in the Texas Controlled Substances Act
contains 3,4-methylenedioxy methamphetamine. The weight of the 3,4-
methylenedioxy methamphetamine was between 1 and 4 grams; thus, the applicant
was charged with the third-degree felony offense of possession of a controlled
substance. See TEX. HEALTH & SAFETY CODE § 481.116(c).
7
Because the applicant was charged with possessing two different controlled
substances that belong to two different penalty groups, the applicant was charged
with two separate offenses. Controlled substance offenses not only have
potentially different punishment ranges based on the penalty group to which they
are assigned, but at the Harris County District Attorney’s Office, they are further
categorized by separate and distinct NCIC/TCIC codes for crime reporting
purposes:
Possession of PG 1 less than 1 gram – State Jail 5599 04
1-4 grams – 3rd Degree 5599 05
4-200 grams – 2nd Degree 5599 06
200-400 grams – 1st Degree 5599 07
>400 grams – 1st Degree (10yr min) 3599 03
Possession of PG 2 less than 1 gram – State Jail 5599 08
1-4 grams – 3rd Degree 5599 09
4-400 grams – 2nd Degree 5599 10
>400 – 1st Degree 3599 06
Possession of PG 3 less than 28 grams – Class A Misd. 5599 11
28-200 grams – 3rd Degree 5599 12
200-400 grams – 2nd Degree 5599 13
>400 grams – 1st Degree 3599 09
Possession of PG 4 less than 28 grams – Class B Misd. 5599 14
28-200 grams – 3rd Degree 5599 15
200-400 grams – 2nd Degree 5599 16
>400 grams – 1st Degree 3599 12
See TEX. HEALTH & SAFETY CODE §§ 481.112-481.118.
Therefore, the applicant was charged in cause number 1445685 with the
second-degree felony offense of possession of a controlled substance, namely,
cocaine, with a distinctive NCIC code of 5599 06. See Appendix, State’s Exhibit
8
A. He was further charged in cause number 1445686 with the third-degree felony
offense of possession of a controlled substance, namely, 3,4-methylenedioxy
methamphetamine, with a distinctive NCIC code of 5599 09. See Appendix,
State’s Exhibit B.
On December 2, 2014, on his second court appearance and without the
benefit of the results of the confirmatory laboratory testing, the applicant waived
indictment in the primary case and entered into a plea agreement with the State of
Texas. See February 27, 2015, Court’s Findings of fact, Conclusions of Law, and
Order, cause no. 1445686-A. After a plea of guilty, the applicant was sentenced by
the trial court to two (2) years in the Texas Department of Criminal Justice –
Institutional Division. See Appendix, State’s Exhibit C.
On January 23, 2015, nearly two months after the applicant’s plea, the State
received a copy of the laboratory report associated with the applicant’s cases from
the Houston Forensic Science Center. See Appendix, State’s Exhibit E. The
laboratory report indicated that the controlled substances possessed by the
applicant were cocaine (6.99 grams) and methamphetamine (1.48 grams), not
cocaine and 3,4-methylenedioxy methamphetamine as alleged in the criminal
complaints. See Appendix, State’s Exhibits A, B and E. Methamphetamine is a
penalty group one controlled substance. See TEX. HEALTH & SAFETY CODE §
9
481.102(6). No other penalty group in the Texas Controlled Substances Act
contains methamphetamine.
It is well established that a positive chemical field test, and an officer’s
subsequent testimony about the result of said field test, is insufficient evidence to
support a conviction. See Curtis v. State, 548 S.W.2d 57, 59 (Tex.Crim.App.
1977). In the applicant’s case, the only evidence that he was privy to at the time of
his plea was the result of the chemical field test. Because he was unaware that the
confirmatory testing would yield a different result, his plea of guilty to possessing
3,4-methylenedioxy methamphetamine was unknowing and involuntary. Had the
parties known of the variance at the time of the applicant’s plea, the case could
have been refiled by the Harris County District Attorney’s Office to reflect the
correct controlled substance, the correct penalty group, and the correct NCIC code.
It is as simple and as complicated as this: the applicant is not now, nor has
he ever been, guilty of possessing 3,4-methylenedioxy methamphetamine. Had the
State proceeded to trial without a confirmatory laboratory report, the jury would
have been instructed to acquit the applicant. Id. Had the State proceeded to trial
with a confirmatory laboratory report indicating methamphetamine, but had not
refiled (or at least fully and properly amended) the charging instrument, the jury
would have been instructed to acquit the applicant if the State did not prove
10
beyond a reasonable doubt that the applicant had possessed 3,4-methylenedioxy
methamphetamine. Again, the jury would have had no choice but to acquit.
The undersigned Assistant District Attorney has found no indication, neither
in case law nor statute, that possession of 3,4-methylenedioxy methamphetamine is
a lesser-included offense of possession of methamphetamine. As this Court is
aware, a two-part test is used to determine whether a lesser-included offense may
be submitted to a jury. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.Crim.App.
1993). First, the lesser offense must be included within the proof necessary to
establish the offense charged. Id. Second, some evidence must exist in the record
that would permit a jury to rationally find that if the applicant is guilty, he is guilty
only of the lesser offense. Rousseau, 855 S.W.2d at 672–73; Royster v. State, 622
S.W.2d 442, 446 (Tex.Crim.App. 1981). In the applicant’s case, it cannot be said
that possession of 3,4-methylenedioxy methamphetamine is included within the
proof necessary to establish the offense of possession of methamphetamine. If
anything, the opposite may be true.
Simply put, the applicant stands convicted of the wrong offense and, as a
result, has asserted a claim that his plea was unknowing and involuntary. Because
the evidence in possession of the State does not support the applicant’s conviction,
the State agrees that the applicant is entitled to relief.
11
IN THE NARROWLY-TAILORED CIRCUMSTANCE OF PRE-INDICTMENT
PLEAS OF GUILTY TO DRUG POSSESSION CHARGES, IF A VARIANCE
BETWEEN THE ILLICIT SUBSTANCE ALLEGED IN THE CHARGING
INSTRUMENT AND THE RESULTS OF A CONFIRMATORY LABORATORY
REPORT RESULTED IN A CONVICTION UNDER AN INCORRECT
STATUTE, HABEAS RELIEF MUST BE GRANTED TO MAINTAIN THE
INTEGRITY OF THE CONVICTION.
The State has a vested interest in maintaining the integrity of their
convictions and the accuracy of their crime reporting. Convictions that are “close
enough” do not help the State fulfill those interests. This Court has previously held
that confirmatory laboratory test results that show no illicit substances render a
guilty plea unknowing and involuntary. See Ex parte Mable, 443 S.W.3d 129
(Tex. Crim. App. 2014). Additionally, this court has cited Mable in the granting
habeas relief in other applications involving 3,4-methylenedioxy
methamphetamine and methamphetamine. See Ex parte Lucas, No. WR-82,306-
01, 2014 WL 6789947 (Tex. Crim. App. 2014)(not designated for publication); see
also Ex parte Mayo, No. WR-82,047-01, 2014 WL 6788221 (Tex. Crim. App.
2014)(not designated for publication); see also Ex parte Williams, No. WR-82,307-
01, 2014 WL 6788359 (Tex. Crim. App. 2014)(not designated for publication); see
also Ex parte Bisor, No. WR-82,382-01, 2014 WL 6789865 (Tex. Crim. App.
2014)(not designated for publication).
This Court should hold that when variances occur between the controlled
substance alleged in a charging instrument and the confirmatory laboratory report,
12
resulting in a conviction under an inaccurate statutory provision, habeas relief
should be granted to afford the parties the opportunity to correct the error in a
timely manner.
PRAYER FOR RELIEF
Based on the foregoing, the State respectfully requests that this Court grant
the application for writ of habeas corpus.
/ s / Inger H. Chandler
INGER H. CHANDLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-1570
(713) 368-9275 (telecopier)
State Bar No. 24041051
13
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been served on
the following counsel of record:
Mr. Nicolas Hughes
Harris County Public Defender’s Office
1201 Franklin Street, 13th Floor
Houston, TX 77002
Date: June 23, 2015
/ s / Inger H. Chandler
INGER H. CHANDLER
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP.
PROC. 9.4(e) because it has been prepared in a conventional typeface no smaller
than 14-point for text and 12-point for footnotes. This document also complies
with the page and word count limitations of TEX. R. APP. PROC. 9.4(I), if
applicable, because it contains 2289 words excluding portions not to be counted
under TEX. R. APP. PROC. 9.4(I)(1).
/ s / Inger H. Chandler
INGER H. CHANDLER
14
APPENDIX
15